Supreme Court confronts question of whether Canadians can seek help to die

Stephanie Levitz

Supporters rally outside the Supreme Court of Canada on the first day of hearings into whether Canadians have the right to seek help to end their own lives Wednesday October 15, 2014 in Ottawa.

Image Credit: THE CANADIAN PRESS/Adrian Wyld

October 15, 2014 - 2:30 PM

OTTAWA - Parliament's inaction in the face of changing opinion on the right of Canadians to seek help ending their lives means the Supreme Court of Canada must weigh in, the court was told Wednesday.

But the government's lawyer countered that there's nothing wrong with the existing ban on assisted suicide.

Two decades after it turned back Sue Rodriguez in her bid for help in dying, the high court is again hearing a challenge to a long-standing prohibition against physician-assisted suicide.

As the population ages, the debate has taken on new urgency and created new divisions among the medical, religious and disabled communities, reflected in the dozens of people who lined up two hours before the hearing began to get a seat in the courtroom or in the overflow seating in the lobby.

It's created a political hot potato that the government won't touch, said Joseph Arvay, the lead lawyer for the plaintiffs in the case, the B.C. Civil Liberties Association and the families of several people who wanted help ending their lives.

When the political system is paralyzed, "it is the duty of this court to step in and protect the rights of the citizens," Arvay said.

The attorney brings a personal perspective to the case: he became a paraplegic after an accident when he was 19. In his opening remarks, he directly addressed the claims of disabled-rights advocates who oppose the concept on the grounds that it suggests that the disabled are better off dead.

"I say — and with the greatest respect I say — it is wrong, indeed it is arrogant of those disabled people to impose their views of what suffering is acceptable and tolerable for others," he told the court.

"Suffering is a very personal, subjective and contextual concept."

Among the issues raised by the judges was to whom the right to assisted death ought to apply. Justice Michael Moldaver wondered about diseases which may not have a cure now, but could in the future. Justice Rosalie Abella asked whether someone's right ought to be limited by the illness itself.

"Assisted dying should only be allowed in the most serious cases and not just because somebody wants to; it's because their condition is not going to get any better," Arvay said.

Though the plaintiffs argue it would be up to Parliament to determine the extent of a law allowing assisted death, they provided some conditions: the person must be an adult, competent, acting voluntary and have a medical condition that is incurable and causes profound suffering.

The court last considered the issue in 1993, when it ruled in the Rodriguez case that where assisted death is concerned, certain rights enshrined in the Charter of Rights and Freedoms are trumped by the principles of fundamental justice.

But 20 years later much has changed, Arvay argued.

"You don't necessarily have to say Rodriguez was wrong, you just have to say you have way more law and way more facts and way more evidence to come to a different conclusion," he said.

But the government disagreed. There is no new case law, no new legal perspectives, nor any new facts, said Robert Frater, the government's lead lawyer.

"Our position is straightforward: Rodriguez is still good law," he told the court.

The current case came before the courts after two B.C. women sought the right to end their lives following diagnoses of degenerative illnesses.

They argued their rights under two sections of the charter were being violated: Section 7, which sets out the right to life, liberty and security of the person, and Section 15, which grants equality rights.

Rodriguez asked the Supreme Court in 1993 whether existing laws violated her charter rights. In its 5-4 decision, the court ruled that while the laws did violate her rights, they were overridden by the principles of fundamental justice.

"Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair," the court said at the time.

In the original ruling in the latest case, a B.C. lower court judge explored ways things have changed since Rodriguez, among them the availability of care for patients nearing death.

But that can't be a consideration here, Frater said.

"It would be an indictment of the health system if you decided that because palliation was not available to everyone you had to find a right to assisted suicide," Frater said.

"That's a legal system gone awry in my submission."

The lack of regular conversations about palliative care between doctors and patients is a complicating factor in determining how far a law on assisted suicide should go, a lawyer for the Canadian Medical Association argued.

This year, the CMA acknowledged that physicians should have the right to help patients die, if the law allows. But they can't be compelled to if their conscience disagrees.

"For doctors, whether the practice conforms to the law does not exhaust the question of whether they can support it," said Harry Underwood.

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Some of what was said Wednesday as the Supreme Court of Canada heard arguments about the prohibition on assisted suicide:

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"The problem with the present situation right now is we have the proverbial back alleys where people have to go out and buy these turkey bags that they fill with helium in order to die, or they have to order drugs from Thailand or Mexico, which if they don't work they leave them brain damaged and worse off. What we want is to have this be as a purely medicalized sort of procedure." — Joseph Arvay, lead lawyer for the plaintiffs.

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"There has not only been a fundamental change in the parameters of the debate since the Rodriguez case, but it is our clients that revived a debate that's been dormant for 20 years, and what a debate it has been. We say this is the case that quite simply needed to be heard, whatever the outcome — and, of course, we hope we will have persuaded you that there is only one right outcome." — Arvay.

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"Our position is straightforward: Rodriguez is still good law. The twin objectives of the legislation ... are as vital today as they were 21 years ago." — Robert Frater, lawyer for the Attorney General of Canada.

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"In my respectful submission, it would be an indictment of the health system if you decided that because palliation was not available to everyone you had to find a right to assisted suicide. That's a legal system gone awry in my submission." — Frater.

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"Once it's accepted that an element of personal autonomy includes the right to decide how and when to end your own life, the right necessarily includes the right to seek assistance. And why do I say that? Because when you look at this issue in Morgentaler, the right to abortion recognized there included the right to assistance in obtaining that abortion. In Insite, the right to a safe injection site recognized the right to assistance in that regard." — Christopher Bredt, Canadian Civil Liberties Association.

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"Our laws and our health care system are committed to protecting life. Striking down the ban on assisted suicide will erode this basic trust." — Statement from Bruce Clemenger, president of the Evangelical Fellowship of Canada.

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"Since euthanasia and assisted dying are illegal, we continue to advise our members not to participate in these activities. Ultimately, however, we recognize that this is a societal issue and that it is society that will ultimately decide what will take place." Statement from Dr. Chris Simpson, president of the Canadian Medical Association.

OPINION At least part of me wasn’t sure I should write this, given what happened last time. It was August 15, 2003 and like many Thursdays before it, I was scratching around for a column idea. The summer newsroom